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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
New River Valley Radio Partners, ) File Number EB-03-NF-020
LLC )
Licensee of WFNR Blacksburg, ) NAL/Acct. No. 200332640006
Virginia )
And Owner of ) FRN 7170764
Antenna Structures 1016736, )
1016737 & 1016738
In Christiansburg, Virginia
Reston, Virginia
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 7, 2003
By the Enforcement Bureau, Norfolk Office:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find New River Valley Radio
Partners, LLC (``NRVRP''), licensee of AM station WFNR,
Blacksburg, Virginia and owner of WFNR's antenna structures,
1016736, 1016737 and 1016738 in Christiansburg, Virginia,
apparently liable for a forfeiture in the amount of twenty-
five thousand dollars ($25,000) for willful and repeated
violation of Sections 11.35(a), 17.50 and 73.49 of the
Commission's Rules (``Rules'').1 Specifically, we find
NRVRP apparently liable for failing to maintain the
operational readiness of its EAS equipment, for failing to
maintain good visibility of its antenna structures and for
failing to maintain effective fencing around its energized
AM antenna towers.
II. BACKGROUND
2. NRVRP is the licensee of WFNR, Blacksburg,
Virginia. The WFNR license authorizes broadcasts with 10.5
watts on 0.710 MHz only during the day from a three-tower
array in Christiansburg, Virginia.
3. NRVRP is also the owner of the WFNR three-tower
array with antenna structure registration numbers of
1016736, 1016737 and 1016738. While the FCC Antenna-
Structure Registration database listed Travis Broadcasting
Corporation as the owner of the WFNR three-tower-array, an
attorney for Travis Broadcasting Corporation and the WFNR
Manager, who is also a partial owner of WFNR, said ownership
belonged to NRVRP. The three structures are 104.6 meters
above ground with a prescription for painting and lighting
per FCC paragraphs 1, 3, 12 and 21.
4. On March 24, 2003, an agent of the Commission's
Norfolk Field Office (``Norfolk Office'') noted that the
WFNR antenna structures were poorly visible from less than a
quarter mile away. On March 27, 2003, the agent noted that
the three structures contained areas of chipped paint that
exposed the metal of the structures and that faded paint
failed to match colors specified in section 17.23 of the
Rules.2 After interviewing persons that were involved with
the operations of WFNR, the Norfolk agent learned that by
one account, at least ten months had passed between the time
the WFNR management was informed of the need for re-painting
the towers and the time of the Norfolk agent's observation,
while by another account, twenty-two months had passed.
5. On March 27, 2003, after WFNR's personnel were
unable to locate logs of recent EAS tests or of recent EAS
message receipts, the Norfolk agent asked operators to
conduct EAS tests. On March 27, and on March 28, 2003, WFNR
failed to transmit EAS tests when operators tried to conduct
tests; and in both instances, operators said that WFNR had
been having problems with the EAS equipment. After speaking
with WFNR's operators, and after review of WFRN's station
logs, the Norfolk agent noted that for four months, WFNR
failed to receive and re-transmit monthly EAS tests and it
failed to receive EAS messages. He also noted that for 15
weeks, WFNR failed to conduct weekly EAS tests and it failed
to receive weekly EAS tests. In addition, WFNR's logs were
without notation of failed EAS test attempts or of problems
with EAS equipment. On April 29, 2003, WFNR's consulting
engineer told the Norfolk agent that a bad cold-solder joint
had prevented the successful operation of WFNR's EAS
equipment, and that he had been asked by WFNR to repair the
EAS equipment in February 2003 but his workload had
precluded the repairs at that time.
6. On March 27, 2003, the Norfolk agent observed WFNR
in operation with unlocked fence gates around its eastern
(1016736) and western (1016738) antenna towers. Both the
station manager and a station operator admitted knowing that
effective fencing was required, but they said that they did
not know who removed the locks or of how long the two fence
gates were without locks. The operator admitted that at his
last scheduled weekly check of the transmitter site (on or
before March 22, 2003), he failed to check tower fencing.
III. DISCUSSION
7. Section 11.35(a) of the Rules requires broadcast
stations to ensure that its EAS equipment is installed so
that the monitoring and transmitting functions are available
during the times the stations and systems are in operation.
On at least March 27, and on March 28, 2003, WFNR's EAS
equipment was inoperable. WFNR logs for the period November
19, 2002 to March 27, 2003, showed no monthly EAS tests
received or sent; no EAS messages received; for 15 weeks
during that period, no weekly EAS tests; no explanation of
failure to receive such tests and activations; and no
entries showing EAS equipment had been removed from service
for repair.3
8. Section 17.50 requires tower owners to clean or
repaint their antenna structures as often as necessary to
maintain good visibility. The WFNR antenna structure
registrations prescribed painting, but on March 24 and 27,
2003, the structures' paint was chipped and faded, and
contrasting color bands could not be seen clearly from less
than one-quarter mile away, resulting in poor visibility of
the structures' markings. According to persons involved
with the operations of WFNR, the structures' markings had
exhibited poor visibility for at least ten months prior.
9. Section 73.49 requires licensees to provide
effective locked fencing or other enclosure around antenna
towers with radio frequency potential at their bases. On
March 27, 2003, while WFNR was in operation, two of its
three antenna-tower base fences were without gate locks.
10. Based on the evidence before us, we find NRVRP
willfully4 and repeatedly5 violated Sections 11.35(a), 17.50
and 73.49 of the Rules. Specifically, we find NRVRP
apparently liable for failing to maintain the operational
readiness of its EAS equipment, for failing to maintain good
visibility of its antenna structures and for failing to
maintain effective locked fencing around all of its
energized AM antenna towers.
11. Pursuant to Section 1.80(b)(4) of the Rules,6 the
base forfeiture amount for failing to maintain the
operational readiness of its EAS equipment is $8,000; the
amount for failing to maintain good visibility of its
antenna structures is $10,000, and the amount for failing to
maintain effective fencing around its energized AM antenna
towers is $7,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors
set forth in Section 503(b)(2)(D) of the Act, which include
the nature, circumstances, extent, and gravity of the
violation, and with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay,
and other such matters as justice may require.7 Considering
the entire record and applying the factors listed above,
this case warrants a $25,000 forfeiture.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,8 and Sections 0.111, 0.311 and
1.80 of the Rules,9 NRVRP, is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-
five thousand dollars ($25,000) for willful and repeated
violation of Sections 11.35(a), 17.50 and 73.49 of the Rules
for failing to maintain the operational readiness of its EAS
equipment, for failing to maintain good visibility of its
antenna structures and for failing to maintain effective
fencing around its energized AM antenna towers.
13. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, NRVRP SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
14. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
15. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
16. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
submitted.
17. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Technical &
Public Safety Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
18. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to New River Valley Radio Partners, LLC;
1930 Isaac Newton Square, Suite 207; Reston, VA, 22090.
FEDERAL COMMUNICATIONS COMMISSION
Joseph P. Husnay
Resident Agent, Norfolk Office,
Enforcement Bureau
AttachmentNew River Valley Radio Partners LLC
1930 Isaac Newton Square
Suite 207
Reston VA 22090
New River Valley Radio Partners LLC
1930 Isaac Newton Square
Suite 207
Reston VA 22090
_________________________
1 47 C.F.R. §§ 11.35(a), 17.50 and 73.49.
2 47 C.F.R. § 17.23.
3 EAS tests and activations, failure to receive such tests
and activations, and EAS equipment malfunctions must be
recorded in the station log. See 47 C.F.R. §§ 11.35(a)-(b),
11.54(b)(12), 11.55(c)(7) and 11.61(b).
4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act . . . .'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
(1991).
5 The term ``repeated,'' when used with reference to the
commission or omission of any act, ``means the commission or
omission of such act more than once or, if such commission
or omission is continuous, for more than one day.'' 47
U.S.C. § 312(f)(2).
6 47 C.F.R. § 1.80(b)(4).
7 47 U.S.C. § 503(b)(2)(D).
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80.
10 See 47 C.F.R. § 1.1914.